COVID-19: Fair Work Commission to create new entitlements in modern awards

Following recent changes to the Hospitality Industry (General) Award 2010 (Hospitality Award), Clerks – Private Sector Award 2010 (Clerks Award) and the Restaurant Industry Award 2010 to introduce greater flexibility during the COVID-19 pandemic, the Fair Work Commission (Commission) has now announced a proposal to vary a further 103 modern awards.

The variations which, if adopted, will operate until at least 30 June 2020, provide an entitlement to unpaid ‘pandemic leave’ and the flexibility to take annual leave at half pay.[1]The variations will be introduced through the insertion of a new ‘Schedule X – Additional measures during the COVID-19 pandemic’ to the selected modern awards.

Unpaid pandemic leave

The Schedule creates a new entitlement for employees to take unpaid pandemic leave.

The entitlement is aimed at those employees who are required to self-isolate but who are not entitled to take paid leave (eg because they have been exposed to someone infected with COVID-19 but are not displaying symptoms, they are a casual or because they do not have enough accrued paid leave).

The key characteristics of the unpaid pandemic leave model term in Schedule X include:

• 2 weeks’ unpaid leave if the employee is required, by government or medical authorities or acting on medical advice, to self-isolate or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic;
• the employee must give their employer notice of the taking of leave and of the reason the employee requires the leave, as soon as practicable;
• on the employer’s request, the employee must provide evidence that would satisfy a reasonable person that the leave is taken for the reason given;
• leave is available in full immediately, rather than accruing progressively during a year of service;
• leave is available to full-time, part-time and casual employees (not pro-rated); and
• leave is accessible without requiring employees to exhaust their paid leave entitlements first.

The Commission proposes that access to unpaid pandemic leave will constitute a workplace right under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), protecting employees against adverse action.

Annual leave at half pay

In addition to unpaid pandemic leave, the Commission also proposes that some modern awards will be varied to allow an employee and employer to agree to the employee taking twice as much annual leave on half pay.

Any agreement reached will need to be recorded in writing and retained as an employee record.

Access to annual leave at half pay will similarly constitute a workplace right under the general protections provisions in the FW Act.

Phased implementation

The Commission anticipates that the variation of the selected modern awards will occur in more than one phase.

Awards that come within the initial phase will include those which cover industries recognised as being hardest hit by a reduction in local demand due to COVID-19 including accommodation and food services, arts and recreation services, retail trade and wholesale trade industries, as well as health care and social assistance and information media and telecommunications.

It will also include the most common modern awards among employees such as the Hospitality Award, Clerks Award, General Retail Industry Award 2010 and Cleaning Services Award 2010.

Awards that have been excluded from phase one include:

• construction awards;
• maritime sector awards; and
• mining and resource sector awards.

Next steps

The Commission has asked for any party wishing to respond to the proposal to file submission by 4.00 pm AEST on Monday 6 April 2020 which will be considered at a hearing scheduled on Wednesday 8 April 2020. We will keep you updated as the proposed variations progress through the Commission.

[1] Statement – Variation of awards on the initiative of the Commission (AM2020/12) [2020] FWCFB 1760 https://www.fwc.gov.au/documents/awardmod/variations/2020/2020fwcfb1760.pdf